Monday, July 4, 2016

The current understanding of “historic rights” in the South China Sea in China can be traced back to a U.S. diplomat.

In
a matter of weeks, perhaps even days, an international tribunal will
pass judgement on some of China’s claims in the South China Sea.
The
judges could – potentially – rule that China’s “U-shaped line” is
incompatible with international law.
The implications of such a ruling
will shake the region.
Before they can consider this question, however, the tribunal judges
must first consider whether they have the necessary jurisdiction.
Chinese officials have argued that
the question of the “U-shaped line” is fundamentally a question of
territory, about which the Permanent Court of Arbitration has no right
to rule.
However, new research tells us that the judges should ignore
such arguments.
Documents in China’s own archives prove that when
Chinese officials approved the U-shaped line they never intended it to
be a territorial boundary.
Other evidence suggests that it only became
one because of the intervention of an American oilman in the 1990s.

The most coherent formulation of what it might mean comes from Dr. Wu
Shicun, president of the National Institute for South China Sea Studies
(an organization jointly sponsored by China’s Ministry of Foreign
Affairs and Hainan Province).

For Wu, the U-shaped line claim contains
three elements:

sovereignty over the features within the line;

sovereign rights and jurisdiction over water as defined by the Law of the Sea (UNCLOS);

The first two components: sovereignty claims over features (assuming
that Wu is referring to rocks and islands rather than underwater reefs)
and UNCLOS-based rights over waters surrounding those features are
relatively uncontroversial.
China’s neighbors dispute the extent of
those claims but they are at least grounded in commonly-understood
international law.
The problem – for the region, for China and for the
world – is the third part of Wu’s formulation.

China’s legal scholars
are working hard, but they’ve yet to come up with a convincing
justification for China to enjoy “historic rights” to waters up to 1,500
km away from undisputed Chinese territory.

South China Sea (1947)

New evidence suggests they shouldn’t even bother trying.

Thanks to
the pioneering work of a Canadian researcher, we now know that the
Chinese officials who drew the U-shaped line back in 1946-7 never meant
it to be an historic claim to waters.

It was simply a cartographic
device to indicate which islands China claimed in the South China Sea
and which it did not.

Christopher Chung, a PhD student at the University of Toronto, is the
first person to forensically examine the archives of the official
Republic of China (ROC) committee that drew the line.He has discovered that,
“On September 25, 1946, representatives of the Ministry of Foreign
Affairs, Ministry of the Interior, Ministry of National Defense, and ROC
Navy General Headquarters 海軍總司令部 (NHQ) convened in the Ministry of the
Interior to resolve several issues pertaining to the South China Sea
islands.”
In its meeting that day, the committee defined which islands China would claim, according to a “Location Sketch Map of the South China Sea Islands 南
海諸島位 置略圖” previously drawn up by cartographers in the Ministry of
Interior.
This map is the very first Chinese government document to show
the U-shaped line and its meaning was clear to that ROC committee: it
defined “the scope of what is to be received for the purpose of
receiving each of the islandsof the South China Sea”
(“接收南海各島應如何劃定接收範圍案”). The committee’s interest was only in the islands.
They made no mention of waters, historic or otherwise.

Nothing changed when that map was published a year and a half later.
In February 1948, the ROC formally concluded four decades of internal
Chinese arguments about where its borders lay with the publication of
the Atlas of Administrative Areas of the Republic of China.
The Atlas
included the new official map of the South China Sea – the first public
document produced by any Chinese government to include the line. Again,
it was only about islands; there were no references to “historic
rights.”

Nothing changed in China’s claim after the victory of the Communist
revolution in 1949 either.
When Zhou Enlai, premier of the People’s
Republic of China, denounced the draft Treaty of San Francisco in 1951,
he talked only of islands, not waters.
The PRC’s 1958 “Declaration on
the Territorial Sea” went further. While claiming a 12 nautical mile
territorial sea, it explicitly noted that the islands were separated
from the Chinese mainland by “the high seas.” There was no mention of
“historic rights.”

South_China_Sea_Islands_Map, 1935

South_China_Sea_Islands_Map, 1947

The first maritime claims became more vague in January 1974, just
before the Battle of the Paracels in which Chinese forces evicted
Vietnam from the western half of those islands.[2]
On January 12 that year, the People’s Daily declared that,
“The resources of these islands and their adjacent seas also
belong entirely to China.”
But this was not a historic rights claim
either.
Rather it was the first sign that China understood the
implications of the negotiations at the UN Convention on the Law of the
Sea (UNCLOS), which had begun the year before: claims to maritime
resources would be measured from coasts and islands.
In mid-1973 the
Republic of Vietnam (South Vietnam) had begun to auction off the rights
to offshore blocks off its southeastern coast. China wanted a piece of
that action.

The PRC participated in the UNCLOS negotiations from the beginning
until their end in 1982.
The final UNCLOS text, which it and all the
other participants agreed to, makes no mention of “historic rights,”
except in the very limited context of “historic bays” close to a
country’s coast.
China ratified the Convention in 1996, again without
making any mention of historic rights.

So, the ROC government didn’t claim “historic rights” in the South
China Sea in 1946-8 and neither did the PRC in its 1958 decree, its 1974
statement, at the UNCLOS negotiations, or subsequently in its 1992 Law
concerning Territorial Waters and Adjacent Regions.
Something changed in
the 1990s, however. By the time the PRC passed its Law on the Exclusive
Economic Zone and the Continental Shelf in June 1998, officials felt it
necessary to include wording that, “the provisions of this Law shall
not affect the historic rights enjoyed by the People’s Republic of
China.”[3]
The concept of “historic rights” only entered the official Chinese lexicon in the late 1990s: but why then?

While there were many factors at work in 1990s China, one that has
been overlooked is the contribution of a buccaneering oilman from
Denver, Colorado.
In early 1991, Randall C. Thompson’s one-man oil
company, Crestone, sealed a deal in the Philippines that opened his eyes
to the potential riches of the South China Sea.
Engineers with BP
advised him that “the next big play” would be around the Spratly
Islands.

In April 1991, Thompson traveled to the South China Sea Institute of
Oceanography in Guangzhou.
There he examined the results of Chinese
seismic surveys the institute had carried out around the Spratlys since
1987.
“They showed me some structures, I got excited about it and then I
did some more research,” he told me.
Thompson kept trying to persuade
the Chinese to take Crestone seriously until, in February 1992, after
much deliberation at the highest levels in Beijing, he finally got to
pitch his proposal to the board of the China National Offshore Oil
Company (CNOOC).
Thompson took along a legal advisor to precisely define
the patch of seabed he wanted the rights to: Daniel J. Dzurek, the
former chief of the Boundary Division of the U.S. Department of State.

It was Thompson and Dzurek who persuaded the Chinese that they could
make a legal case to exploit oil fields hundreds of miles away from
China, off the southern coast of Vietnam.
According to Thompson, “I used
him [Dzurek] to help get validity to our concept this is Chinese waters
and he strongly espoused many positions that this is Chinese waters,
not Vietnamese waters based upon sovereignty of claim and historic
stuff.”
Dzurek, however, plays down his role. In an email he told me
that he, “never gave China any ‘boundary advice’,” but “merely helped
negotiate an offshore lease.”
However in a key academic paper
published after the Crestone episode, he noted that the Chinese term
for the “U-shaped line” might best be translated as “traditional sea
boundary line.”[4]
He seems to have accepted – and developed – the idea that China had
“historic rights” in the area beyond those spelled out in UNCLOS.

At the same time, lawyers in Taiwan, not mainland China, were also
trying to develop the concept of historic rights.
In 1993, the ROC
government issued its South China Sea Policy Guidelines, which stated,
“the South China Sea area within the historic water limit is the
maritime area under the jurisdiction of the Republic of China, in which
the Republic of China possesses all rights and interests.”[5]
The phrase appeared in Taiwan’s draft Territorial Sea Law, but
disappeared on the bill’s second reading in the Legislative Yuan.[6]
The argument about whether or not to claim “historic rights” within the
U-shaped line continues to divide Taiwanese maritime lawyers.

The concept has taken on new life in the Chinese mainland,
particularly with officials such as Wu with an interest in maximizing
the country’s maritime claims.
This is no mere academic argument; the
“historic rights” claim is the only possible basis for China’s
auctioning of oil exploration blocks along the Vietnamese coast in June
2012: they are well beyond any potential Exclusive Economic Zone that
could be drawn from land features claimed by China.
It also lies behind
the claims that Chinese fishing boats are operating in their
“traditional fishing grounds” when they are found within Indonesia’s
claimed EEZ off the Natuna Islands.
Above all it provides the basis of
China’s claim to have the right to regulate navigation within the
U-shaped line – and obstruct “freedom of navigation” by other countries’
ships.
This is the fundamental cause of the dispute between China and
the United States in the region and the one most likely to lead their
armed forces to come to blows.

The irony is that China seems prepared to risk conflict to defend a
claim to “historic rights” that was first set out by an American
boundary expert, and which is—at best—no more than 20 years old.
Some
have called for China to clarify its claims in the South China Sea.
I
argue the opposite.
Imagine if Beijing clarified the claim in what the
rest of the world would regard as “the wrong way” – stating that the
U-shaped line is a boundary and all the waters within it are
historically China’s. China would have nailed its colors to the mast and
be forced to publicly defend its position, regardless of its legal and
historical ridiculousness.

China has recently begun what it says is a five year process to draw up a new maritime law.
Chinese officials and academics privately admit that there is still
much confusion about what China should claim in the South China Sea and
why.
Some internal lobbies – such as Hainan Province with its large
fishing industry – want to press a maximalist claim.
But that claim will
bring China into collision with its neighbors and the United States.
Now is the time for China’s friends to explain that such a claim not
only has no basis in international law, but also no basis in China’s own
history.
It is nonsense.

While that process of discussion continues, it is much better that
China leave its claims vague and then quietly bring them into line with
commonly-understood international law over time.
Forcing China into a
corner, in a legally adversarial manner, might sound attractive but
there’s a risk that it could force the outcome least desired by the rest
of the world.